Monday, April 5, 2010

Justice Stevens' Views on the Court, Dissenting, and Judicial Behavior

Will he do it, or won't he? That is the big question surrounding Justice Stevens rumored retirement from the Court. In an interview published yesterday by the New York Times, Justice Stevens shed very little light on that question.

Three other things he did say caught my attention.Note first how the "wise Latina" controversy was much ado about nothing (shocking, I know). According to Justice Stevens, “I’ve confessed to many people that I think my personal experience has had an impact on what I’ve done. . . .Time and time again, not only for myself but for other people on the court, during discussions of cases you bring up experiences that you are familiar with.” In so many words, this was the view expressed by Justice Sotomayor that brought her so much criticism. I wonder whether Senator Sessions and the conservative talking heads will come after Justice Stevens for this comment. Then again, maybe they objected not to the notion that personal experience influences judging, but the fact that the Latina would be a "wise" one.

On the issue of judicial behavior, turns out that Justice Stevens comes quite close to the Chief Justice's view, expressed during his conformation hearings, that a judge only calls balls ands strikes, nothing more. In reference to the controversial Kelo case, Justice Stevens was relieved that he was not a legislator, so he would not have to decide how this issue should ultimately come out. He added: “One of the nice things about this job is that you don’t have to make those decisions” . . . . “Very often you think, in this particular spot I don’t have to be deciding the really hard case about what should be done. Which is one of the reasons why the function is really quite different from what people often assume.”

Not sure that I have much to add to this point, other than to wonder out loud whether Justice Stevens could possibly be serious, or just playing to his audience. In light of that comment, I wonder how he would explain the recent Citizens United case, or the Court's jurisprudence under the Voting Rights Act, or the Court's race jurisprudence under the Fourteenth Amendment. The functions may be different, and so are the processes, but the end result is functionally the same: strategic policymaking. I am not sure how anyone intimately familiar with the Court's inner workings could hold any other view.

His views on the role of dissent is also eye-opening. Once the Court decides an issue, he explained that he would no longer continue to dissent in future cases, as Justices Marshall and Brennan would do in death penalty cases. This is because “I’m still a member of the court, and I still have to work.” Maybe so. But Marshall and Brennan are hardly the only ones who would follow this approach -- see for example, Justice Thomas many concurring opinions in Section 2 cases under the Voting Rights Act, which refer to his earlier criticism in Holder v. Hall, or the many dissents by Justices Kennedy, Thomas and Scalia in campaign finance cases. Of note, these dissents culminated in the recent Citizens United case. Similar dissents might also lead to an overturning of the Voting Rights Act. If this is what being a "a member of the team" is, I wonder what being a member of the opposite team looks like.